Resolving Gig Workers’ Employment Disputes: St. John's Law Panel Discussion Highlights
In the gig economy, many people earn income by providing on-demand work, services, or goods through an app or a website. One recent survey suggests that at least one-third of U.S. workers participate in gig work through digital platforms.
In contrast to many countries, contracts governing U.S. gig workers often contain mandatory arbitration provisions. On Sept. 29, St. John’s University School of Law’s Center for Labor and Employment Law and the Hugh L. Carey Center for Dispute Resolution, in Queens, N.Y., examined this employment law setting in the conflict resolution context, presenting a Fall 2023 symposium, “Will Alternative Dispute Resolution Deliver Justice for Gig Workers?”
The symposium consisted of two panels. Highlights below are presented from the second panel, “Designing and Improving an ADR System that Provides Justice for Gig Workers.” The panel included Michael Green, Professor of Law and Director of the Workplace Law Program at Texas A&M University School of Law in Fort Worth, Texas; Homer C. La Rue, Professor of Law at Washington, D.C.’s Howard University School of Law, a past president of the National Academy of Arbitrators, and a board member of the CPR Institute, which publishes this blog; and Allen Waxman, CPR’s President and CEO.
Elayne Greenberg, Professor of Legal Practice and Faculty Director of the Hugh L. Carey Center for Dispute Resolution at St. John’s University School of Law, moderated the panel.
Advocates for U.S. gig workers have challenged their clients’ mandatory arbitration provisions in court but have been confronted with roadblocks based on the Supreme Court’s support for such provisions. The panelists gave insight into the effectiveness of ADR processes in the pursuit of justice for gig workers and offered what they said were workable solutions to prevent further harm to those workers resulting from mandatory arbitration agreements.
The first question posed by Moderator Greenberg was, “What role does ADR play in justice for gig workers?”
The panelists agreed on the benefits of mediation and arbitration. Prof. La Rue explained that although the outcome of an ADR process may not be considered “fair” or “just” by a particular party, the process is always agreed to by the parties. Allen Waxman added that there are many ADR options that parties can agree to use, and ADR processes produce efficient outcomes.
Prof. Green, however, answered the initial inquiry with a question of his own to provoke thoughts among his fellow panelists and the audience. After asserting his support for arbitration, Green questioned how a just outcome could be found for gig workers if the law is unfair and unclear regarding their profession.
Prof. La Rue concurred with Green, stating that the law and the rights it provides are unclear regarding gig workers, particularly whether they are considered employees or independent contractors. La Rue claimed he would prefer a court of law to set a precedent concerning gig workers rather than an arbitrator because the law can be unclear, and arbitrations are not precedential.
The next question from the moderator was “What will happen with gig workers involved in mass arbitrations?” Allen Waxman explained that when mass claims are filed by gig workers against an employer, mandatory arbitration contracts induce mass arbitrations. Employers, however, often refuse to pay filing fees for mass arbitrations because the fees can be expensive, and the entire process is “stymied,” preventing gig workers from finding solutions to any issues they may have.
Waxman explained that the CPR Employment-Related Mass Claims Protocol attempts to streamline mass arbitrations and explained the highlights of the protocol. When there are 30 or more nearly identical claims against an employer, and the employer and the workers have the CPR protocol in their contract, CPR’s mass arbitration protocol can be triggered. The employer agrees to pay almost all the process fees.
Of the 30 claims, 10 will be randomly identified and arbitrators will be given those 10 claims. The parties may select an additional five claims to be reviewed. These test cases will serve as an exemplar while the rest are stayed.
Under CPR’s protocol, Waxman explained, the reasoned, written awards from the 10 arbitrations, will be given to a mediator. The mediator will examine the awards and mediate between parties to identify a “Substantive Methodology” and, as a result, a global resolution framework. If no framework is found after 90 days, an opt-out is permitted where the parties can opt to go to court or resolve their issues in arbitration.
Waxman noted that the protocol includes the Ray Corollary Initiative, which declares that the selection pool of arbitrators will be at least 30% diverse.
Homer La Rue, who is the RCI's board chairman, and was a consulting party for the CPR protocol (among 20 others who helped develop it over a number of months), supports the mass arbitration protocol. The “genius of the CPR protocol is that it does not exclude any forum,” he said. The protocol is an encapsulation of ADR processes with an option for parties to also use the court system, La Rue explained. Therefore, the CPR protocol can make mass arbitration as efficient as possible while enabling parties to freely exercise their rights in their chosen forum.
Panelist Michael Green said that the mass arbitration protocol sounded “wonderful,” but questioned how CPR addressed attorney’s fees. Allen Waxman responded that the CPR protocol does not independently address attorney’s fees. He explained that, while attorney’s fees can be a leverage point in mass arbitration, the CPR protocol neutralizes some of that leverage by proceeding with test cases first.
Moderator Greenberg, as a follow-up to the breakdown of CPR’s mass arbitration protocol, questioned how the panelists expect that courts would view the protocol going forward. Waxman and La Rue informed the moderator and the audience that the federal California Northern District Court declared that CPR’s protocol was fair.
Next, Moderator Greenberg asked the panelists to speak about diversity. Prof. La Rue said that gig workers are frequently marginalized workers--black, brown, and people of color. In an ADR process, generally, the decision-makers tend to be older white men. La Rue questioned the legitimacy of ADR if it appears that “only a part of the demographic is capable of making decisions.”
La Rue then gave the statistic that inspired the Ray Corollary Initiative: If the slate of potential arbitrators is 30% diverse, it “astronomically” increases the chances of a diverse arbitrator being selected. But that chance goes to almost 0% when the slate includes fewer than 30% diverse candidates, he explained.
The RCI has expanded from ADR organizations to law firms. La Rue referenced a quote from President Biden: “Look, it's a powerful thing when people can see themselves in others . . . somebody who made you believe you could be whatever you wanted to be.” The Ray Corollary Initiative, La Rue said, resonates with the notion of the quote.
Prof. Green also spoke about ADR process diversity. He mentioned commentary that he had written in The Hill June 28, 2021, titled “Arbitrator diversity matters for justice perceptions and realities,” and explained that ADR processes should follow the example of the courts, which attempt to ensure fair cross-representation on juries.
Green suggested that neutral service providers should be assigned randomly to increase diversity. Currently, neutrals are estimated to be 88% white and 77% male, which exists with the perception that dispute resolution processes provide fairness and justice. Green questioned if legislation should be implemented to prevent mandatory arbitration for gig workers, such as the March 2022 law preventing mandatory arbitration proceedings in sexual harassment and sexual assault claims.
The penultimate question from Elayne Greenberg was “People sign without reading a lot of time, assuming a conflict will not happen. What can you do when going to arbitration to ensure that workers are informed and empowered? What can we do better to inform gig workers what their options are?”
Prof. La Rue answered first, stating that upholding gig workers’ mandatory arbitration contracts despite lacking informed consent is “eviscerating the notion of unconscionability.” He doubled down, stating that gig workers need answers through the judicial process along with the ADR process to ensure justice.
Referring to an idea of co-panelist Michael Green, La Rue said he believes that it is essential to make mandatory arbitration less onerous, maybe through legislation.
Then, La Rue talked about ADR processes' diversity. He noted that many selectors choose arbitrators whom they know, but that is a limited pool of arbitrators who happen to “look like them.” He discussed CPR’s efforts to combat the lack of diversity including the “Meet the Arbitrators” event which took place in an informal setting so selectors could meet diverse arbitrators. (See Katherine Simpson, “CPR's Howard Law-Ray Corollary Initiative Event Seeks to Expand the ADR Profession's Diversity Efforts,” 41 Alternatives 102 (July/August 2023) (available at https://bit.ly/47EtGty). LaRue suggested more, similar events.
Allen Waxman stated that human resources executives would not be sitting down with every employee to ensure the employees gave informed consent when signing contracts. He suggested that instead of mandatory arbitration provisions, agreements could have an “opt-in” process so gig workers would not be subjected to mandatory arbitration without having informed consent when signing contracts.
Panelist Green again referenced jury selection, stating, “We don't countenance striking a juror based on race,” before declaring that there is nothing to regulate striking an arbitrator. This lack of diversity can lead to unfair results for diverse gig workers if diverse arbitrators are kept at a distance from being involved in ADR processes. Green concluded by asking what methods could incentivize businesses to come to the negotiating table and make ADR processes more open because businesses must lead for gig workers’ ADR problems and issues to be corrected.
Finally, Moderator Greenberg asked how artificial intelligence can refine conflict resolution processes. Allen Waxman stated that there can be bias in machines and although the technology is present, technology should be used cautiously to accelerate processes, not in place of people.
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The panelists at “Designing and Improving an ADR System that Provides Justice for Gig Workers” gave valuable insight into the pros and cons of ADR processes when gig workers participate in mandatory arbitration.
Changes are necessary to ensure that gig workers can receive justice through ADR, and it is evident that CPR’s employment mass arbitration protocol is attempting to effectuate this change, as well as other efforts to ensure diversity in ADR processes.
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The author, a second-year student at the Howard University School of Law in Washington, D.C., is a full-year CPR intern as part of CPR’s consortium program with Howard Law’s ADR program. Prof. La Rue is co-director of the program.